Heard Ms. Savita Sarana assisted by Ms. Natasha Shahni, learned counsels for the petitioner. Sri Alok Garg, the respondent no. 1 has appeared in person.
The present writ petition is directed against the order dated 16.10.2017 passed by the Presiding Officer, Labour Court, U.P., Noida, Gautam Budh Nagar, whereby objection of respondent no. 1 under Section 36 of the Industrial Disputes Act, 1947 (in short "the Act") in I.D. Case No. 38 of 2016 (Sri Alok Garg vs. S.T. Microelectronics Pvt. Ltd.) has been allowed restraining the petitioner employer from being represented by a legal practitioner before it. The employer has been granted liberty to authorise a representative who is a competent person within the meaning of Section 36(2) of the Act.
The petitioner is an IT company wherein respondent no. 1 was employed as an Associate Design Engineer w.e.f. 28th April, 2003. Some dispute arose regarding his working and certain payments and as such the respondent no. 1 moved an application under Section 33C(2) of the Act before the labour Court. On 31.1.2017 i.e. the first date of hearing before the labour Court, an authority letter dated 25.1.2017 was filed by Ms. Savita Sarana and Ms. Natasha Shahni alongwith three others to appear as representatives on behalf of the petitioner.
It is contended on behalf of the petitioner that the said authority letter was filed in the presence of the respondent and was also marked in the Court file. On 22.3.2017, the petitioner filed an application raising preliminary objection regarding the jurisdiction of the labour Court on various grounds. On the same day, the respondent no. 1 moved an objection under Section 36 of the Act, objecting to the representation of the petitioner by the persons who are legal practitioners. A reply to the said objection was filed by the petitioner on 17.5.2017. The labour Court has allowed the objection taken by the respondent no. 1 with regard to the representation of the employer through legal practitioners who filed the authority letter on 25th January, 2017. While rejecting the said authority letter, vide order dated 16.11.2017 the petitioner/employer has been restrained from being represented through a legal practitioner though a liberty has been granted to them to authorise a person as representative as per Section 36(2) of the Act, hence this writ petition.
The labour Court has allowed the objection of the respondent no. 1 on the ground that correct facts have been concealed while filing authority letter. The said authority letter neither bears signatures of the persons to whom authority for representation has been given and moreover, they being legal practitioners, the employer was under obligation to take consent of the respondent no. 1 by disclosing the said fact in the authority letter itself.
Challenging this order, it is contended that the respondent no. 1/employee was well aware of the identity of the representatives who filed authority letter in his presence on 25.1.2017. The respondent no. 1 is litigating with the petitioner in at least four cases wherein the said associates of M/s Chaddha & Co. represent the employers. Some of the litigations are before the Controling Authority and the appellate authority under the Payment of Gratuity Act. The employee, therefore, had ample knowledge of the identity of the representatives who filed their authority being advocates associated with the M/s Chaddha & Co. The authority letter having been filed in his presence and he took no objection on the date of filing i.e. 25.1.2017, it was implied that he had given consent for representation of the employer by legal practitioners. Moreover, the labour Court having accepted authority letter by placing it on record had granted leave to the employer for the purpose of Section 36(4) of the Act. Thus both the pre-requisite conditions of Section 36(4) of the Act stand fulfilled. It is submitted that once the consent is given, even impliedly, it cannot be withdrawn. For granting leave, the labour Court is not required to pass a separate order rather as soon as the authority letter has been kept in the file of the labour Court, it would be assumed that the leave has been granted. It was, therefore, not open for the respondent no. 1 to object to the authority of the representatives to represent the petitioner employer by moving the application on 22.3.2017.
It is further submitted that the said application has been moved in a malafide manner, inasmuch as, the respondent no. 1 made a false statement in the labour Court that he was not aware of the relationship between the petitioner and its advocates i.e. associates of M/s Chaddha & Co. Further the labour Court had ignored the settled position with regard to the implied consent of the parties in dispute under Section 36 of the Act. The issue in this regard is well settled, inasmuch as, the consent under Section 36 of the Act can be both explicit or implicit. In a given case, if a party does not dispute the authority of the other party to be represented by a legal practitioner, at the initial stage, the implied consent is assumed. Consent once given cannot be revoked at a later stage as there is no provision under the Act enabling for any withdrawal or revocation.
Further the labour Court has illegally prohibited the employer from being represented through a legal practitioner on the premise that the fact of authorised representatives being legal practitioners had not been disclosed. The authority letter filed on 25.1.2017 was in the prescribed format as has been provided under the Industrial Disputes Act. The employee did not object to the said authority for a period of two months and as an afterthought, he moved application malafide raising objection on the ground that the authority letter was filed without his prior consent and leave of the Court.
The submission is that even if it is assumed that the employee was not aware of the correct status of the authorised representatives, on the objection taken by him vide application dated 22.3.2017, the only course left open for the labour Court was to grant liberty to the employer to file a proper authority letter of the legal practitioners, who would represent him, giving chance to take consent from the employee alongwith application seeking leave which would have been decided on its merit. The labour Court in an arbitrary exercise of power being swayed away by the objections of the employee restrained the employer perpetually from being represented through a legal practitioner in the dispute before it. The objection dated 22.3.2017 of the employee cannot be deemed to be denial of consent under Section 36 (4) of the Act, inasmuch as, the employee took a simple stand that his prior consent had not been taken. In any case, on the question of leave, the labour Court was required to apply its mind independently. As this has not been done, the order passed by the labour Court in allowing application 5-C i.e. the objection of the employee to the authority letter dated 22.1.2017 is an arbitrary exercise of power which is the result of overreaching its jurisdiction.
Reference has been made to the judgments; of the High Court of Bombay in T.K. Varghese vs. Nichimen Corporation1, M/s. Bhagat Brothers vs. Paras Nath Upadhyay2 decided on 13.8.2008; of the Delhi High Court in Umesh Mehta vs. M/s Sheraton3; this Court in I.C.I. India Ltd. vs. Labour Court (IV) and another4 and of Supreme Court in Hygienic Foods vs. Jasbir Singh and Others5 to submit that there is no complete prohibition for the legal practitioners to represent the employer. Rather in T.K. Varghese (supra), the Bombay High Court held that the provisions of Section 36 (4) is always subject to scrutiny of the labour Court and it can decide the question of refusal of consent by the other parties. In case of any refusal, it has to deal with the matter independently and has jurisdiction to overrule the refusal of the consent on merits while considering to grant or refuse the leave contemplated under Section 36(4) of the Act. It is not that if consent is refused, the labour Court is denuded of its power to consider the matter of grant or refusal of the leave independently or that the leave shall necessarily be refused.
Sri Alok Garg, the respondent no. 1 appearing in person, on the other hand, submits that his personal knowledge of relationship of the petitioner with M/s Chaddha & Co. and that they represented the employer in the past is of no relevance. He is not aware of any perpetual contract between the petitioner and the advocates who filed the authority letter dated 25.1.2017 and that the employer would be represented in all disputes before any Court of law by them.
The authority letter dated 25.1.2017 is drafted in such a manner that it maliciously concealed the relationship of the authorised representatives and the petitioner. The employer had not approached the labour Court with clean hands. The application raising objection under Section 36(4) of the Act filed by the respondent no. 1 is well within his statutory right. There is no malice in filing of the said application. In any case, the respondent no. 1 had no clear knowledge of the authorised representatives being legal practitioners on 25.1.2017 when authority letter was filed. On 25.1.2017, he did not object to the appearance of Ms. Savita Sarana who was not present in the dress of an advocate and claimed herself as authorised representative. He was not aware as to in which capacity she was appearing. There is, thus, no question of any implied consent.
Placing reliance upon the judgment of the Apex Court in Paradip Port Trust, Paradip vs. Their Workmen6, it is contended by the respondent no. 1 that the position of law is well settled that the prior consent of the other party is required even before leave is sought from the labour Court for being represented by a legal practitioner. Any implied consent can be assumed only with the knowledge of the party concerned. The party refusing consent is not to give reason and in case of refusal, the labour Court cannot grant leave as both the pre-requisite conditions i.e. of consent of the parties and leave of the Court are to be fulfilled for a party to be represented through legal practitioner.
Placing the observations made by the Apex Court in Paradip Port Trust (supra), it is contended that the consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4) of the Act.
It is contended that an argument was raised before the Apex Court in that case that "and" in Section 36(4) should be read as "or" in which case refusal of consent by a party would not be decisive in the matter and the Tribunal will be able to decide in each case by exercising its judicial discretion whether leave, in a given case, should be given to a party to be represented by a legal practitioner notwithstanding the objection of the other party.
Submission is that the said argument of the Advocates therein was turned down by the Apex Court with the observation that it is the matter to be dealt with by the Legislature and not for the Court to explain, inasmuch, the language of Section 36 is clear and unambiguous.
The observations of the Apex Court that the Industrial Disputes Act is a special piece of legislation with the aim of labour welfare. The representation of the parties before the adjudicatory authority has to be seen with clear object for which it was framed by the legislature, has been placed before this Court by respondent no. 1 to press his submission, it is not open for the Court to say that the consent of the other party is not mandatory under Section 36(4) of the Act.
Further with reference to the judgments of the Apex Court in N.K. Bajpai vs. Union of India and another7, Jamshed Ansari vs. High Court of Judicature at Allahabad8 and the judgment of this court in V.K. Gupta vs. Presiding Officer Central Government Industrial Tribunal and 2 others9, it is contended that the question of right of an Advocate to practice in a labour Court or to represent a litigant has been held to be only a legal right subject to the restrictions under the Industrial Disputes Act. The Courts have held that engagement of a lawyer other than the employee or staff of the Management to appear before the labour Court/Tribunal is subject to fulfillment of two conditions viz (i) the consent of other party; and (ii) the leave of the Court.
Placing reliance upon the judgments of the Madras High Court in The National Horticultural vs. The Government of India10 and of the Bombay High Court in Thyssen Krupp Industries India Pvt. Ltd. vs. Suresh Maruti Chougule and others11, it is contended that the Court has upheld the vires of Section 36(4) of the Act, relying on the authoritative pronouncement of the Apex Court in Paradip Port Trust (supra).
Heard learned counsel for the parties and perused the record. To answer the question that arises for consideration, it would be apt to go through the relevant Section 36 of the Act quoted as under:-
"36. Representation of parties.- (1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by-
(a) any member of the executive or toher office bearer] of a registered trade union of which he is a member:
(b) any member of the executive or other office bearer] of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;
(c) where the worker is not a member of any trade union, by [any member of the executive or other office bearer] of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by-
(a) an officer of an association of employers of which he is a member;
(b) an officer of a federation of association of employers to which the association referred to in clause (a) is affiliated;
(c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorized in such manner as may be prescribed.
(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.
(4) In any proceeding [before a Labour Court, Tribunal or National Tribunal], aparty to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and [with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].]"
Section 36 deals with the representation of the parties before the Tribunal and the labour Court. Under Section 36(1), a workman who is a party to the dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers as mentioned in sub-clause (a), (b) and (c) of sub-section (1). Similarly under Section 36(2), an employer who is a party to the dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers as mentioned in clauses (a), (b) and (c) of that sub-section.
Sub-section (3) imposed a complete ban on representation of a party to a dispute by a legal practitioner in any conciliation proceedings under the Act or in any proceedings before a Court.
Section 36(4), however, carves out an exception by introducing prior consent of the opposite party and leave of the labour Court or Tribunal, as the case may be, to enable a party to be represented by a legal practitioner. Thus, the provisions of Section 36(1) and 36(2) confer on the contesting parties absolute right of representation by persons; respectively, specified therein. On the other hand, the conditions laid down in Section 36(4) are to be fulfilled for any party in the matter of representation by legal practitioner. Both the conditions of consent of the opposite party and the leave of the Tribunal or labour Court, as the case may be, will have to be fulfilled to enable a party to secure representation before the Tribunal or labour Court through legal practitioner. On the other hand, for a legal practitioner who is an officer of the company or Corporation and is in their payroll and under their control or is an officer of an association of employers or of a federation of such association, there is nothing in Section 36(4) to prevent him from appearing before the Tribunal under the provisions of Section 36(2) of the Act.
In Paradip Port Trust (supra), the Apex Court has held that an office bearer of a trade union or a member of its executive, even though he is a legal practitioner, will be entitled to represent the workman before the Tribunal under Section 36(1) in the former capacity. The legal practitioner in the above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office bearer of the union in the case of workman and not in the capacity of a legal practitioner. The fact that the person is a legal practitioner, thus, will not affect the position if the qualifications specified in Section 36(1) and Section 36(2) are fulfilled by him. In such cases, there is no scope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as office bearers of the trade unions or as officers of the employers associations. Once the qualifications under Section 36(1) and Section 36(2) are fulfilled prior to appearance before the Tribunal, there is no need under the law to pursue the matter in order to find out whether the appointments are in circumvention of Section 36(4) of the Act. Motive of the appointment cannot be made an issue before the Tribunal.
However, in case of a legal practitioner who does not qualify the conditions of sub-clauses (a), (b) and (c) of sub-section (2) i.e. not being an officer of the association of employers or federation of employers, is prohibited from appearing before the labour Court or Tribunal to represent the employer without the consent of the other party and leave of the labour Court or Tribunal. It has been held therein that the parties will have to confirm two conditions laid down in Section 36(4) in the matter of representation by the legal practitioner.
The object of laying down these conditions has been discussed by the High Court of Bombay in Thyssen Krupp Industries (supra) while dealing with the constitutionality of the provision of Section 36(4) of the Act. The arguments put forth on behalf of the petitioner therein was that the provision imposes unreasonable restrictions on the right of an advocate to practice guaranteed by Section 30 of the Advocate Act, 1961.
Taking aid of the Apex Court judgment in Lingappa Pochanna Appelwar vs. State of Maharashra and another12, it was held therein that a litigant does not have a fundamental right to be represented by a lawyer in any Court. Section 36(4) cannot be said to be unconstitutional and ultra vires Article 14 of the Constitution of India as also Article 21 thereof. Though both the articles may take in their sweep a right to seek legal redress or access to a Court of law or a guarantee of justice, but that is not to be confused with the right claimed by an employer to be represented by an advocate/lawyer in any Court. The said right is not a part of the mandate of these provisions in the Constitution of India.
The Apex Court in Lingappa Pochanna Appelwar (supra) while dealing with the challenge to Section 9-A of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, wherein there is a restraint on the parties to be represented by an Advocate observed that the question in such case is not that of the right of the legal practitioner. From the view point of litigant, no litigant has a fundamental right to be represented by a lawyer in any Court except under Article 22(1) of the Constitution by which an accused who is arrested and detained in custody is entitled to consult and be defended by a legal practitioner of his choice. The observations therein are that it was felt by the legislature that it would not subserve the public interest if lawyers were allowed to appear, plead or act on behalf of the non-tribal transferees. The reason being that a tribal and a non-tribal are unequally placed and non-tribal transferee being a person belonging to the more affluent class, would unnecessarily be on a higher pedestal in case he is allowed to be represented by a lawyer. He may protract the proceedings raising all kinds of pleas calculated to delay or defeat the rights of the tribal for restoration of his lands The nature of proceedings before the Collector have to be completed will sufficient despatch and the transferred lands restored to a tribal without delay.
It is observed in Thyssen Krupp Industries (supra) that on the same principles, in conciliation proceedings wherein the process of mediation is adopted between the parties, the presence of legal practitioners is totally prohibited as they may divert attention to technical pleas and may detract from the informality of the proceedings in impeding smooth and expeditious settlement. But the Industrial Disputes Act envisages investigation and settlement of industrial dispute at different levels before various authorities all independent of one another. The labour law operates in a field where there are two unequal contestants. The Act, therefore, takes care of the challenge of the situation in which the weaker party is pitted against the stronger before adjudicating authorities. This appears to be one of the reasons for introducing consent of the parties for representation by legal practitioners.
The Court has further said that, however, to find out the intent of the legislature in incorporating Section 36(4) of the Act and while making its interpretation, the crucial fact that it was enacted in the year 1947 when the trade union movement in the country was in its infancy and was absolutely a novice before the adjudication machinery has to be taken into consideration. It was observed that the legislature had visualized the legal battle between the two unequals before the industrial authorities under the Industrial Disputes Act. The Trade Unions with little resources, on one hand, could not be pitted against the mighty employers, who had all wealth at their command. In order to bring about fairness and equality i.e. equal protection of law to unequals, the legislature has provided under Section 36(4) of the Act, the manner in which the parties would be represented in the proceedings under the Act.
The underlying principle of Section 36(4) is just and fair trial and equal opportunity to both the contesting parties. The position is not so as on date. It cannot be universal fact that the trade union or the association of the employees are poor unskilled lot these days. There has been sea change in the circumstances. The trade union movement has become 68 years old. It has crossed its age of infancy. The trade unions and/or employee have acquired good wealth to engage services of legal practitioner. Some of the trade union leaders have acquired knowledge, legal acumen and skill to defend the employees. They have seasoned office bearers or members who have acquired rich experience in the field of labour law. The trade unions are professional litigants and have rich experience. Whereas, large number of small employers have also come up in the industrial sector. They cannot be denied the services of legal trained practitioners when they are dragged in the Industrial litigations.
It has gone further to say that the industrial law is a complicated branch of law and a person or persons who has good knowledge of labour laws can properly represent the parties before the labour Court/Tribunal. An employer may not have a person having legal training and knowledge of practical functioning of the Court on its employees role. They cannot be denied right of representation. There may be a situation where an employee is represented by an office bearer of a trade union or an association or employee well versed in the labour laws or having legal knowledge and training, in such circumstance, if it refuses to grant consent to the other side, in case of mechanical rejection of leave to the employer, he would be put at a disadvantageous position. Thus, in any eventuality, the purpose of conditions laid down in Section 36(4) is to give both the parties a level playing field before the labour Court so that they may fight at the same level. Whether an employer or an employee, in the eyes of law, they both are equal though may be unequal in their wealth or knowledge. In any case, while granting leave to a party to be represented by the legal practitioner, the labour Court/Tribunal would be guided by the principles of the equality and fair play. It can make an enquiry as to whether denial of consent by the other party is actuated by malice or malafide or motivated to get upper hand in the litigation.
The whole idea is that if one party is represented properly i.e. by a representative recognised under the provision, it cannot refuse to grant consent to the other party to engage a lawyer without any reasonable cause and justification. The labour Court would be required to make an enquiry to consider the bonafide of such a party for withholding consent. Upon making such enquiry, if the labour Court finds that the other party is not represented properly, in the interest of justice, it can grant leave to the other party to be represented by a legal practitioner notwithstanding the refusal of consent by the other side. No party can be allowed to take wrongful advantage of the provision of the Act.
The Court has proceeded to hold that by no stretch of imagination, it can be said that in case of refusal of consent by the other party, the application seeking leave by a party would be rejected mechanically by the labour Court without applying its mind or making any enquiry. Such interpretation of the legal provision would result in misuse of the process of law and run against the principles of fairness and equality.
Thus, it can be seen that the provision is always subject to the scrutiny of the labour Court and it can always decide the question of refusal of consent by the other party and can overrule the refusal of the consent on merits independently while considering to grant or refuse leave contemplated under Section 36 (4) of the Act.
With the same point of view, the High Court of Bombay in T.K. Varghese (supra) has upheld the decision of the labour Court in permitting the employer therein i.e. the Japanees Company to be represented by a legal practitioner though the employee therein withheld the consent. The Court has observed therein that the appearance of a person having good knowledge of law and functioning of the Court is always in the interest of justice, inasmuch as, very often it is not possible for a party appearing in person to detach himself form the dispute and to present the problem with proper knowledge and understanding and the lack of knowledge may cause them more sufferance. In any case, the justice demands that there should be a fair and equal fight before the Court.
The respondent no. 1 with the aid of judgment of Apex Court in Paradip Port Trust (supra) vehemently argued that both the conditions of consent of the other party and leave of the Court are to be fulfilled for a party to be represented by the legal practitioner. In case of denial of consent, the labour Court would not be able to grant leave, inasmuch as, the consent of the party is not an idle alternative but a ruling factor in Section 36(4) of the Act.
This submission of respondent no. 1 cannot be accepted at its face value, inasmuch as, if this argument is accepted, there may be a situation where a poor employee and a mighty employer are pitted against each other. The employer is represented by an officer or office bearer of the employers organization or association who is well versed in the field of the labour law. Whereas the poor employer is represented by a member of an insignificant trade union not so well-versed. In case, the employer refuse to give consent to allow the employee to be represented by a legal practitioner knowing that he had no such expertise, the employee would be put at a disadvantageous and unfair position. Moral of the story is that no one can be allowed to take undue benefit of any legal provision. The Legislature in its wisdom has framed the provisions to ensure that both the parties before the labour Court fight at the same pedestal. The condition of leave of the Court has been added to ensure that in all eventuality, the interest of justice is upheld, by placing unequals as equals before it.
Considering the above noted circumstances and the considerable development in the field of labour laws and the complicated questions of law which are arising everyday in the Court while dealing with the matters relating to labour laws, this Court is of the considered view that the labour Court has an inherent right to decide as to whether, it would be in the interest of justice to grant or refuse the leave to a party under Section 36 (4) of the Act. The leave granted by the labour Court/Tribunal will have an overriding effect as even in case of grant of consent, the leave of labour Court is necessary for a party to be represented by a legal practitioner. In all such cases, where the consent is denied, the labour Court has to decide the matter of grant or denial of leave on the principles of fair play and equality to ensure that the interest of justice is upheld. In any case, there cannot be a mechanical denial of leave by the labour Court in the event of withholding of consent by the other party who may be an employer or employee.
In the light of the above discussion, it is to be seen that in the facts of the instant case whether order of refusal of the leave by the labour court serves the ends of justice and can be upheld.
In the instant case, the respondent no. 1 has approached the labour Court under Section 33C(2) of the Act with the assertion that his dues have not been paid. The petitioner i.e. respondent therein has taken a stand that the respondent no. 1 himself is a Law Graduate, he is litigating with the employers before various Courts and is having good knowledge of law and legal provisions. He is in a position to represent himself with good knowledge of law and knows technicalities and niceties of legal profession. The employer, on the other hand, is an IT industry which has no experience or knowledge of Indian Labour Law nor any such officer who can represent it.
The assertion made by the petitioner employer in the writ petition in this regard have not been denied by the respondent no. 1 in his reply filed before this Court. It is admitted that the respondent no. 1 had passed LL.B. in the year 2013. He has also done M.Sc. (Electronics). The statement of the petitioner herein that the respondent no. 1 is having a proper knowledge of law is denied but it may be noted that the respondent no. 1 had also appeared in this Court personally. However, making any comment on his knowledge and experience in the field of law would not be proper for the Court. Thus, leaving this question to the wisdom of the labour Court, where the respondent no. 1 has to present his case, this Court finds that while allowing the objection of the respondent no. 1, labour Court had totally ignored the purpose and intent of the provisions of Section 36(4) of the Act. It has proceeded in a manner as if in case the consent is denied by other party, it has no option but to refuse the leave. The observation of the labour Court that the employer had not approached it with clean hands as they did not disclose in the authority letter that the authorised representatives are legal practitioners may be one of the circumstances for refusal of leave to the authorised representatives, who have filed the authority letter dated 25.1.2017 to represent the employer. But that ground cannot be taken to prohibit the employer from being represented by a legal practitioner after complying with the pre-requisite conditions of Section 36(4) of the Act.
Since the matter is in its incubation stage i.e. only objection at the preliminary stage are being dealt with, in the interest of justice, the proper course for the labour Court was to permit the employer to file a fresh application seeking leave of the Court for representation by a legal practitioner after taking consent of the other party. In case of refusal of consent by the respondent no. 1, the labour Court was under obligation to decide the application on merits after applying its mind independently that whether in the event of refusal of leave the employer would be at a disadvantageous position. Thus, while making scrutiny under Section 36(4) of the Act in its inherent power, the labour Court was required to make a proper enquiry so as to ensure that both the parties appearing before it will have an equal opportunity to fight with each other and that they get the same level playing field.
Even otherwise, the objection of the employee was that the authority letter dated 25.1.2017 of the employer does not disclose the representatives being legal practitioners and, therefore, there was no question of his consent as per Section 36(4) of the Act. At no point of time, the employee states that he will be at a disadvantageous position, in case, leave is granted to the employers for representation by a legal practitioner and, therefore, he has a right to withhold the consent. The labour Court deviating itself from dealing with the merits of the objection swayed away by the fact that the employer did not disclose the correct facts before it. The employer, on the other hand, submit that the authority letter filed by them is strictly in compliance with the requirements of the Industrial Disputes Act.
Thus, in the facts and circumstances of the case, while upholding the order of the labour Court in refusing to grant permission to the representatives who had filed authority letter dated 25.1.2017, the order dated 16.10.2017 passed by the labour Court is set aside to the extent wherein it has denied leave to the employer to be represented by a legal practitioner altogether in the proceedings before it, except only by the representatives within the meaning of Section 36(2) of the Act.
Consequently, the order of rejection of the authority letter dated 25.1.2017 is hereby upheld.
A liberty, however, is granted to the petitioner employer to move a fresh application before the labour Court seeking leave of the Court to be represented by a legal practitioner under Section 36(4) of the Act. Before moving such an application, it would be obligatory upon the petitioner to seek consent of the respondent no. 1/employee. However, in case of denial of consent by respondent no. 1, the labour Court would be under obligation to proceed and decide the application seeking leave on merits in the light of the aforesaid principles.
Subject to the above observations and directions, the writ petition is partly allowed.